In September 2019, pilots at Ryanair participated in a strike called by BALPA, the recognised trade union. Ryanair responded by withdrawing their concessionary travel benefits for a year. The claimants presented claims to the Employment Tribunal arguing, amongst other things, that the withdrawal of their benefits constituted an unlawful detriment contrary to section 146 of TULRCA, which protects workers from detriment connected with trade union activities.
At the initial hearing, the Tribunal upheld the claim, concluding that, by striking, the pilots were taking part in a trade union activity and so were protected under the provisions of section 146 of TULRCA. Ryanair subsequently appealed against the Tribunal's decision.
The EAT dismissed the appeal, holding that section 146 of TULRCA confers protection on workers who take part in industrial action. In reaching its decision, the EAT built on and applied the reasoning in the recent case of Mercer v Alternative Futures Ltd in which the EAT had previously considered the scope of the protection offered by section 146 of TULRCA. Prior to that case, because of the way various provisions (namely section 146, section 152 and Part V) of TULRCA were worded, it had been understood that the scope of the protection from detriment for 'trade union activities' did not extend to protection for any form of industrial action. However in Mercer the EAT concluded that the meaning of 'trade union activities' section 146 of TULRCA should be interpreted as encompassing participation in industrial action and so protect employees from any detriment resulting from such activities.
In this case the EAT went even further than in Mercer and clarified that the protection for workers participating in industrial action should extend not just to those participating in 'protected' industrial action (that is action which is lawfully organised by a union and compliant with balloting requirements) but to those participating in any form of union endorsed or authorised industrial action.
This is a significant decision which builds on the additional protection for workers taking part in industrial action which was established by the EAT in Mercer. Employers will therefore need to need to be very careful about how they handle any industrial action, both when proposed or when taking place, to ensure any participating employees are not subjected to any unfavourable treatment that would fall foul of TULRCA.